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Saturday, September 10, 2011

Duane Buck sits on death row awaiting execution on 15 September by the people of Texas. There is no doubt that Buck is factually guilty of the murders for which he is to die. From the appellate decsion of Buck v. Thaler, I offer the following factual summary of the case.

Early one morning in July 1995, Buck's ex-girlfriend, Debra Gardner, and several of her friends, including Kenneth Butler, his brother, Harold Ebnezer, and Buck's sister, Phyllis Taylor, gathered at Gardner's house after having spent the previous night out p laying pool. Buck and Gardner had ended their relationship about one week earlier. At some point that morning, Buck arrived at the residence, banged on the front door, and kicked it open, after which he argued loudly with Gardner and struck her before retrieving some of his possessions and leaving.

Several hours later, Buck returned with a rifle and a shotgun. After forcing the front door open, Buck fired at — but missed — Ebnezer, who immediately fled the house through the back door. Buck then approached Taylor, pressed the muzzle of the rifle directly against her chest, and fired. Taylor fell to the ground but survived her injuries. As she lay on the ground, Taylor heard several more gunshots coming from the area of the bedrooms. When Taylor was able to stand and make her way through the house, she discovered Butler's body slumped over and bleeding in the hallway.

After hearing the first gunshots, Devon Green, Gardner's then-11-year-old son who had been sleeping in the back bedroom, hid in the hallway closet. From his hiding place, Green listened as Buck confronted Butler in the hallway and accused him of sleeping with Buck's "wife." Gunshots followed. Both Green and his teenage sister, Shennel Gardner, then ran outside, where they witnessed Buck shoot their mother as she attempted to flee in the street.

Buck placed both guns into the trunk of his car, which was parked outside Gardner's residence, and attempted to start the vehicle. When his car did not start, Buck began walking away from the residence. Police arrived just as he was leaving, and both Green and Ebnezer identified him as the shooter. Police then took Buck into custody and recovered a shotgun and a .22 caliber rifle from the trunk of his car. Both Gardner and Butler died from their gunshot wounds.

There is more controversy than usual surrounding Duane Buck's impending execution. The controversy has nothing to do with whether or not Buck killed Debra Gardner and Kenneth Butler. The controversy has to do with the punishment phase of his trial. The jury was told by an "expert" that Buck was more likely to be a future danger to society because he was black.

Attorneys for a Texas man scheduled for execution in eight days are asking a federal judge to order a new sentencing trial, contending that Duane Buck's 1997 sentencing was unconstitutional.

Buck's was one of seven death-penalty cases that then-Attorney General John Cornyn wanted reviewed for what he called an "egregious error": An expert witness told juries that certain races were more likely to be dangerous in the future. While the other six eventually received new trials, Buck, who is African-American, "slipped through the procedural cracks," according to Andrea Keilen, executive director of the Texas Defender Service.

"The bottom line is that his trial was tainted by this racist evidence. So we're asking that he have a fair opportunity, in front of a jury that's not biased by this sort of thing, to argue for his life."

She says the Buck case highlights how the death penalty is sometimes applied unfairly, even after the question of guilt or innocence has been settled.

Buck shot and killed Debra Gardner and Kenneth Butler in 1995, and injured Phyllis Taylor, who now says she has forgiven him and wants his life spared. Keilen says allowing race to factor into the sentencing violated both the due-process and equal-protection clauses of the Constitution.

The problem with the racist argument in this case is that the witness who made the "racist" observation was a defense witness. That's right. The "racist" expert was called by Buck's own attorney. I offer the following from the 5th Circuit decision in Buck v. Thaler.

In mitigation, Buck presented evidence that he is a peaceful, non-violent person; that his mother died when he was 12 years old; that he worked as an auto mechanic; and that, while he was growing up, his father had served several jail sentences for non-violent felonies. Buck called Dr. Walter Quijano, a clinical psychologist, as an expert witness to testify on the likelihood of Buck’s future dangerousness. On direct examination, Dr. Quijano testified that he had considered several statistical factors when evaluating Buck’s potential for future dangerousness, including but not limited to age, sex, race, social economics, history of violence, and history of substance abuse. Regarding race, Dr. Quijano stated: “It’s a sad commentary that minorities, Hispanics and black people, are over represented in the criminal justice system."
...
On cross-examination, the prosecutor questioned Dr. Quijano regarding the several factors that he had mentioned during direct examination. At one point, the prosecutor -- without objection from Buck’s defense counsel -- asked Dr. Quijano about his consideration of both race and sex as relevant factors in his future-dangerousness analysis, which led to the following exchange:

Q: You have determined that the sex factor, that a male is more violent than a female because that’s just the way it is, and that the race factor, black, increases the future dangerousness for various complicated reasons; is that correct?
A: Yes.

... [T]he State has consistently maintained that it did not violate Buck’s constitutional rights merely by questioning Buck’s own expert witness -- without objection from Buck -- on the very same issues first discussed by that witness during direct examination by the defense, a classic example of the defense “opening the door” for the prosecutor to pursue the subject.

That seems to be the extent of the "racist" testimony in Buck's trial. Neither side mentioned race in their opening or closing arguments. The appellate courts have all agreed with the State of Texas on this issue in this case. I agree with the State of Texas as well on this issue in this case.

I oppose the death penalty for those cases where there is some reasonable case for factual innocence. In all other cases, I have stood mute, taking no stand one way or the other on the propriety of the death sentence. I have not yet allowed procedural errors to change my position. The procedural error in this case, assuming there even was one, does not cause me to change my position.

3 comments:

Using statistical data to (allegedly) predict the behavior of a specific individual is the worst use of math I can imagine. We all belong to all sorts of demographic groups, but our behavior, as individuals, cannot be determined by any behavioral trend of any or all of those groups.

It's not so much science as black magic. It's like saying someone is more of a danger because they have brown hair, and most people who commit violence have brown hair. Never mind the fact that most people in the *world* have brown hair.....

you forgot to mention that the 6 others who had new sentencing trials were all sentenced to death again...its a procedural error,and doesnt alter the fact that Buck killed a mother in front of her kids who were pleading with him not to shoot her.Ithier execute these killers within a year, or give them life without parole,but put an end to this ridiculous costly legal merry go roundRob BurfordEngland..UK.

Falsely invoking racism, as with the Duane Buck case, is just another example of how death penalty opponents will apply any deception, no matter how vile, to achieve their ends (1).

The problem for Buck and his supporters is that Dr. Quijano's entire testimony, with regard to Buck, specifically, was that Buck was at reduced risk of being a future danger, the opposite of the death penalty opponents claims. No surprise.

From US Supreme Court Justice Sotomayor's dissent, IN FAVOR OF BUCK: “In this case, first on direct examination by the defense, Dr. Quijano merely identified race as one statistical factor and pointed out that African-Americans were over represented in the criminal justice system; he did not state a causal relationship, nor did he link this statistic to Buck as an individual”

In fact, the opposite occurred. Dr. Quijano's testimony was about Buck's reduced risk of future danger.

The alleged racist component from the trial never existed.

Sotomayor attempted to create a racism based claim, by taking a prosecutor's inference out of context, an inference which never stated that Buck was at future danger based upon race, as Dr. Quijano stated that Buck was at reduced risk of re offending and never stated that Buck had an elevated risk because of race.

"Moreover, the prosecutor did not revisit the race-related testimony in closing or ask the jury to find future dangerousness based on Buck’s race." (2).

Alcala writes: "As to (Buck's) second claim (based upon racism) , I conclude that (Buck) has failed to make out a prima facie case for discriminatory intent in the prosecution's decision to seek the death penalty in his case." (3). "intent".

Alcala thought this such a minor issue that she didn't even bother to respond to the claim in the body of her opinion, but only in a footnote (3).